Mr X and Department of Education and Skills

Case Number: 160289

Whether the Department was justified in its decision to grant only partial access to records relating to a list of schools which were proposed to form part of a project to evalauate educational provision for children on the autistic spectrum, on the ground that part of one of the records was not captured by the applicant's request and that information redacted from the second record is exempt from release under section 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 April 2016 the applicant submitted a request to the Department for a copy of an email wherein a named member of staff of the Department's Special Education Section emailed a specific schedule to her colleague, and a copy of the attached schedule.

On 2 June 2016 the Department refused the request on the ground that the records sought could not be found or did not exist. The applicant sought an internal review of that decision. The Department affirmed its decision on 30 June 2016. On 5 July 2016 the applicant sought a review by this Office of the Department's decision.

During the course of this review, the Department located the records in question. It released redacted copies of the two records to the applicant. The applicant indicated he was unhappy with the redactions made. I therefore consider that the review should now be finalised by way of a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the Department, and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

The Department redacted part of the email sought on the ground that did not come within the scope of the applicant's request and it redacted parts of the schedule on the ground that release of the full schedule would involve the disclosure of personal information relating to parties other than the applicant. Accordingly, this review is concerned with the question of whether the Department was justified in its decision to grant only partial access to the records sought.

Preliminary Matters
It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to redact certain information from the records at issue was justified.

Analysis and Findings

The email
The applicant sought access to an email where a named staff member of Special Education Section forwarded a schedule of schools to a colleague, and to a copy of the schedule in question. While the Department released a thread of emails to the applicant, this review is concerned only with the email sent on 28 January 2014 at 10:26 am, which the applicant accepts to be the email sought. The Department described the accompanying schedule as a sample of schools selected by researchers for a project commissioned by the National Council for Special Education (NCSE) named "An Evaluation of Education Provision for Students with Autism Spectrum Disorder in Ireland" that was published by the NCSE in May 2016.

The Department redacted the text contained in the subject line of the email and three of four bullet points contained in the body of the email. In his FOI request to the Department, the applicant referred to two other emails which led him to understand that the email in question existed and that the schedule was attached to that email. It appears that the Department's argument is that the text redacted from the email is not concerned with the subject matter discussed in the two emails referenced by the applicant, namely the list of schools, and that the redacted text does not, therefore, come within the scope of his request. If that is the case, then I do not accept that argument.

While it may well be the case that the applicant's primary interest is in seeking access to information relation to the list of schools, the wording of his FOI request was clear. He simply sought a copy of the email where a named staff member emailed the schedule to her colleague. His request contained no restrictions in terms of subject matter. Accordingly, I find that the entire email fell to be considered by the Department for release.

I note that a specific school is referenced at bullet point four in the body of the email. As the Department redacted the identities of the schools listed in the schedule under section 37, I will also consider below whether the identity of the school in the email also falls to be protected under section 37. I find that the remainder of the email should be released to the applicant as the Department has cited no other ground for protecting the record.

The schedule
The schedule at issue contains details relating to a number of schools. The Department redacted from the schedule identifying information relating to those schools, namely the County in which the schools are situated and the name and identification number of the schools, and the former statuses of two of the schools. The redactions were made under section 37(1) of the FOI Act. That section provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester.

In its letter of 12 August 2016 to this Office, the Department stated that it was advised by the NCSE that the release of the school names risks identifying children and that the redactions were made in order to "maintain the integrity of personal information obtained in the research by the NCSE". In a subsequent submission of 5 October 2016 to this Office, the Department stated that the schedule refers to a sample of schools selected by researchers for the project commissioned by the NCSE which resulted in the publication by the NCSE of the Report referred to above. It stated that some of the schools in the sample have small enrolment numbers of less than 50 students, are in rural and Gaeltacht areas and have only one or two children with an autism spectrum disorder. It argued that by releasing the names of the schools, the identities of these children, along with their parents and the staff of each school, including the principal and special needs assistants, would become obvious to those in the local area.

It appears that the Department's concern is that while the NCSE Report has been anonymised to protect the identities of individuals, the disclosure of the identities of the schools contained in the schedule would allow for the identification of personal information relating to identifiable individuals in the NCSE Report, as a result of local knowledge. However, the Department provided no further information as to how this might arise. It did not, for example, point to any specific information contained in the NCSE Report that would allow for the identification of identifiable individuals if the names of the schools as contained on the schedule was released.

I have also had regard to the report itself, which comprises an evaluation of the educational provision in place for children with an autism spectrum disorder in Ireland. The report appears to have been comprehensively anonymised. While it is clear to me that the report contains information of a very sensitive nature, it is not at all apparent how the release of the identities of the schools contained in the schedule at issue would allow for the identification of individuals connected with the schools. I note that section 37 provides for the refusal of a request where access to the record concerned would involve the disclosure of personal information (my emphasis). It seems to me that the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section 37 to apply. Having regard to the burden of proof provided for in section 22(12)(b), I find that the Department has not justified its decision to refuse access to the information redacted from the schedule under section 37(1). For the same reasons, I find that the identity of the school contained in the email is not exempt from release under section 37(1).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby annul the decision of the Department, and direct the release of both the email sent on 28 January 2014 at 10:26, and the accompanying schedule, in full.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.